No Such Thing as a Stupid Question

September 27, 2012 | By Brian Taylor Goldstein

A conversation with an attorney who specializes in performing arts visas

Whether you’re an agent, manager, presenter, or other arts professional, it is possible to file for and secure visas for foreign artists to perform in the U.S. without having to hire an attorney or, you’ll pardon the expression, cancel a performance. But first you need to accept from the outset that there are no shortcuts, no easy answers, and no simple tricks. Here’s an imagined conversation that breaks the process down.

When is an artist required to have a work visa?Almost always. One pervasive myth is that a work visa is not necessary unless an artist is being paid. Not true. U.S. law defines “work” as any performance, regardless of whether an artist receives payment. So even artists who perform for free or receive payment outside of the U.S. must get work visas.

So if an artist comes in as a visitor and then performs, that’s illegal?Yes. And it’s even illegal to advise them otherwise.

But what if the artist is performing for a nonprofit? Or is only getting a small fee? Or just expenses? There must be exceptions for nonprofits!Sorry. It doesn’t matter. Every artist who performs, regardless of who they perform for or how much they get paid, still needs a work visa. (There are actually a few very narrow, very rare exceptions, but for our purposes it’s best to not dwell on them.)

That stinks.Yes it does. And Congress is unlikely to change the rules anytime soon.

Ok...[sigh]...are there special work visas for artists?Yes. Work visas for artists fall into two broad categories, “O” and “P,” and there are different kinds of Os and Ps

O-1 Individual Artists of Extraordinary Ability

O-2 Support Personnel for the O-1 (i.e., accompanists, backup singers, musicians, tech crew, or any performer or nonperformer who is necessary for O- 1'S performance)

P-1 Internationally Recognized Groups

P-1S Support Personnel for the P-1 (i.e., tech crew or other non-performers)

P-2 Reciprocal Exchange Visas That Are Arranged Between Artist Unions

P-3 Culturally Unique Individuals or Groups

P-3S Support Personnel for the P-3 (i.e., tech crew or other non-performers)

So, how does a foreign artist get one of these work visas?The process involves three steps:

A U.S.-based petitioner—for instance, a presenter seeking to engage a foreign group—must file a petition for visa approval on behalf of the artist with United States Citizenship and Immigration Services (USCIS). The filing fee is $325. The petition will be reviewed by a USCIS examiner and either approved, returned for more evidence or forms, or denied.

Once the petition is approved, the artist or group must appear personally at a U.S. consulate and apply for the visa itself…and pay more fees.

Upon entering the U.S., each individual will need to present his/her visa to a Customs and Border Patrol (CBP) officer for inspection.

Who can be a petitioner?Any U.S. citizen, organization, or permanent resident (“green card holder”) can file a visa petition. A presenter or an agent/manager can serve as the petitioner; so can an American ensemble engaging a foreign artist.

What if the artist will be performing at more than one place, like on a tour? Does each venue or presenter have to file a separate petition?No. If an artist will be touring, then a U.S. agent or manager can file a petition listing all of the artist’s presenters, venues, and engagements on the same petition. Alternatively, any one of the presenters or employers on the artist’s tour can be the petitioner on behalf of itself and all of the other presenters. The only requirement is that each presenter on the tour submit a signed form or other written confirmation showing that it has authorized the petitioner to include his engagement on the petition.

Is the petition just a form? What else needs to be given to USCIS?The petition consists of completed forms as well as evidence establishing that the artist or group meets the specific requirements for the specific visa he or she needs. For example, if the petition seeks an O-1 visa, then the petition must include evidence that the artist is internationally distinguished for his or her achievements or abilities; or, if the petition seeks a P-1 visa, then there must be evidence that at least 75 percent of the members of the group have been working together for at least a year and that the group is internationally recognized for its achievements.

Good grief.There’s more. Each petition must include a “consultation letter” from an appropriate performing arts union stating whether or not it agrees that the artist or group meets the requirements.

Wait! What? What if this isn’t a union performance?It doesn’t matter. If you’re hiring a musician, you’ll need a consultation etter from the American Federation of Musicians. If you’re hiring a singer, you’ll need a consultation letter from the American Guild of Musical Artists. An actor? Actors Equity. A lighting designer or stage technician? The International Alliance of Theatrical and Stage Employees, and so on.

So what kind of “evidence” does the U SCIS need to prove that the artist is “internationally distinguished for his or her achievements or abilities”?It depends on the artist or group as well as the type of visa they need, but, for the most part, the evidence will consist of written documentation that the artist or group has performed at Prestigious venues, received significant awards, garnered critical acclaim, released successful recordings, or received the praise of experts. You’ll need to submit things like copies of programs, copies of newspapers articles and reviews, lists of awards, liner notes from CDs or DVDs, and letters from experts familiar with the artist or group.

Are the petitions and the accompanying materials reviewed by a USCIS examiner who is familiar with the arts? Will they recognize who is significant and what is prestigious?Hardly. Most USCIS examiners are utterly unfamiliar with the performing arts. (Once, when the Metropolitan Opera applied on behalf of a singer, a USCIS examiner famously argued that the petition didn’t specify where it was located or provide evidence that it was a distinguished venue!)
Far too many petitions are denied because the petitioner didn’t submit enough material. It is not enough to merely list an artist’s accomplishments; you must also explain—often in excruciating detail—the significance of each. If an artist has won an award, explain why the award is significant. If the group has performed at a prestigious festival or concert hall, explain that only distinguished artists perform there. If necessary, include letters from experts in the field supporting your arguments. The artist’s biography and a handful of newspaper articles printed from a website will rarely be enough.

How much time will all this take?In exchange for the $325 filing fee, USCIS usually takes 30 to 45 days to review a visa petition. If you want a guaranteed review in 15 days or less, you will need to pay a premium processing fee of $1,225, in addition to the basic filing fee.

After its review, USCIS will either respond with an Approval Notice or a Request for Evidence (RFE), asking for more materials to justify the petition. If you get an RFE, you will be given time to submit additional evidence that USCIS will then review, but this can add an additional 60 to 90 days to the process. After the re-review, USCIS will either approve or deny the petition.

Assuming it’s approved, how long with the visa be good for?Visa petitions are approved for specific lengths of time—called “classification periods”—during which the artist or group will be permitted to enter the U.S. and perform. The length of the classification period depends on the number of engagements and the type of visa. A petition can be submitted for a visa to cover a single engagement or a tour of multiple engagements—up to three years for an O visa and one year for a P visa. The petition must include an itinerary that lists and identifies each engagement, as well as a written confirmation of each engagement.

We hate contracts and never use them. Does USICS require a signed contract for each engagement?While signed contracts are preferable, you can also use emails, letters of interest, holds, deal memos, a cocktail napkin, or confirming memorandums. Anything in writing will work.

Do the engagements all have to be back-to-back? Can an artist enter, perform some engagements, leave, and then re-enter on the same visa?It depends. If there are significant gaps between engagements (usually more than 60 to 90 days), USCIS may not approve the full classification period requested. If the group has a series of engagements in September and no other dates until March, the approved classification period will probably cover only the September dates. A new and separate petition would then have to be submitted for the March dates, requiring another trip to the consulate [see next question] for new visas. An artist or group can, however, add or delete engagements throughout the classification period.

Are we done? When does the artist get the actual visa?Not yet. Once the petition is approved, each and every artist listed on the visa approval—whether it’s the four members of a string quartet or 80 members of an orchestra—will need to schedule an interview appointment at a U.S. consulate, fill out an application form, pay a visa application fee to the consulate, be interviewed, wait for a security check, and have their visa stamped into their passport.

How does an artist make an appointment at a consulate? Is this something I can do for them?Each consulate has its own procedures and policies for making appointments, paying fees, and submitting applications, but these are all generally done through the consulate’s web site. Depending on the consulate, and on the time of year, a visa appointment may be available in as little as three days or it can take up to three months. The application form demands extensive, sometimes invasive personal information: parents’ and siblings’ names, professional affiliations, social clubs and groups, dates of military service, criminal records, medical conditions, prior visits to the U.S., etc. The specific procedures, fees, and forms for each consulate, including approximate wait times for appointments, can be found on the State Department’s web site.

Which consulate can the artist go to?The artist or group can schedule their interviews in any country or city in which the United States has a consulate.

Are there U.S. consulates in the United States?No. U.S. consulates only exist outside of the U.S.

Will the consulate issue the visa right away?No. After the interview, the artist will be sent away to await a determination. If all goes well, a visa may be issued the next day or in a few days. However, like everything else, processing times vary greatly from consulate to consulate. And any element that arouses the consular officer’s suspicion—past arrests, visits to any country deemed a terrorist threat—can delay the process, usually by 30 days or more. This is where past indiscretions can jump up and bite, such as a prior arrest, even for a minor offence or prior performances in the U.S. on a visitor visa! Ultimately, regardless of whether or not USCIS has approved the visa petition, the consulate has broad and unfettered authority to deny a visa for any reason—or no reason—and while the artist can reapply, the decision and whims of the consulate are not appealable.

Oh, my God! Are you saying that I can go through the entire petition process, pay the fees, submit the petition, get it approved, and the consulate can still refuse to issue the visa?Yes. It doesn’t happen often, but it happens often enough.

But once the consulate issues the visa, that’s the last hurdle?Not quite. There’s one more. Even after USCIS approves the visa petition, and even after the consulate issues the visa, the decision whether to admit an artist into the U.S. is made at the discretion of the CBP officer at the point of entry. It is unusual for a CBP officer to refuse entry. But it can happen if an artist says something inconsistent with the visa category or classification period. For example, a member of a chamber ensemble was once denied entry when he told the CBP officer that, in addition to performing with his group, he had been engaged to perform as a soloist: solo performances are not allowed on a P visa.

I’m overwhelmed. Please tell me that this is everything I need to know!The bad news is that this conversation only covers the tip of the iceberg. There are a lot of important nuances and details. In fact, the tiniest mistake—such as signing a form in black ink, as opposed to the required blue ink—can lead to a rejected visa. However, the good news is the web site Artists from Abroad, which is maintained by the League of American Orchestras and Association of Performing Arts Presenters. The site is a definitive, exhaustive, step-by-step guide to the entire visa process, including filing instructions, tips, strategies, FAQs, sample forms and petitions, timelines, fees, and links to consulates. It even goes into a topic we haven’t even discussed yet—tax requirements for foreign artists who perform in the United States, which can be even more confusing.

Named one of Washington, DC’s top Entertainment Attorneys by Washingtonian Magazine, Brian Taylor Goldstein is a partner in the law firm of Goldstein & Guilliams PLC (GG Arts Law) and a managing director of artist management agency GoldsteinGuilliams International. In addition to being the legal advisor to NAPAMA and IAMA, Mr. Goldstein is a frequent speaker at national and regional arts conferences and serves as an adjunct professor of arts management at George Mason University.